(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Auxiliary Justice Mullins)
8 September 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This is an appeal against sentence.
The appellant pleaded guilty to one count of the sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The sentencing judge commenced with a sentence of eight years’ imprisonment and reduced that by 25 per cent on account of the appellant’s plea of guilty.
The appellant was sentenced to six years’ imprisonment, with a non-parole period of two years and six months.
The appellant appeals his sentence on the ground that it is manifestly excessive and seeks re-sentence pursuant to s 158(7) of the Criminal Procedure Act 1921 (SA).
Held (the Court), granting permission to appeal and dismissing the appeal:
1.Where it cannot be shown that any relevant sentencing factors were overlooked, and no irrelevant matters were taken into account, the appellant must show that the sentence was “outside the permissible range of sentences for the offender and the offence”.
2.Having regard to the whole of the circumstances of the offending and the offender, it has not been demonstrated that the sentence in this case is manifestly excessive.
3.The starting point of eight years’ imprisonment, whilst high, needed to reflect the seriousness of the appellant’s offending and his recognition of the wrongfulness of his conduct, including the extent to which he prevailed upon an unwilling and young child.
4.The non-parole period of just over 40 per cent of the head sentence is a very low non-parole period and clearly reflects the sentencing judge’s concern about the appellant’s intellectual functioning, likely hardship in custody and prospects for rehabilitation.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mills v The King [2025] SASCA 99
Case
[2025] SASCA 99
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentence imposed on the appellant, Mills, by the District Court of South Australia. The dispute revolved around the non-parole period set by the sentencing judge, which the appellant argued was excessive. The appeal was heard by the Full Court of the Supreme Court of South Australia.
The primary legal issue before the Full Court was whether the non-parole period of just over 40 per cent of the head sentence was manifestly excessive, thereby providing grounds for interference on appeal.
The Court acknowledged that the non-parole period was "very low" and indicated that it clearly reflected the sentencing judge's considerations regarding the appellant's intellectual functioning, the likely hardship she would experience in custody, and her prospects for rehabilitation. Despite this observation, the Court concluded that the appeal against the sentence should be dismissed, although permission to appeal was granted.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The non‑parole period of just over 40 per cent of the head sentence clearly reflected her Honour’s concern about the appellant’s intellectual functioning, likely hardship in custody and prospects for rehabilitation. It is a very low non‑parole period. Conclusion Permission to appeal should be granted but the appeal dismissed.